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Court Battle Begins Over UC Gym Complex

By Richard Brenneman
Friday September 21, 2007

The city of Berkeley, environmental groups and neighbors are seeking to overturn the UC Board of Regents’ approval of documents that would pave the way for a massive construction program and the removal of a grove of oaks along the stadium’s western wall. 

The first day of hearings in the multi-plaintiff battle in Alameda County Superior Court Wednes-day focused on the Alquist-Priolo Act, a 1972 state law that bars certain kinds of new construction on earthquake faults. 

However she rules, Alameda Superior Court Judge Barbara Miller will be on the way to creating new case law, since only one previous court case on the law has resulted in a legal precedent—a case that also involved new construction on the Berkeley campus. 

The issue in dispute Wednesday was whether or not the 142,000-square-foot Barclay Simpson Student Athlete High Perform-ance Center is part of the landmarked California Memorial Stadium or a separate building. 

Stadium or a separate building. 

If Miller rules that it’s part of the stadium—a finding sought by attorneys Michael Lozeau, Stephan Volker and Harriet Steiner—then the high-priced high-tech gym couldn’t be built. 

That’s because of the fact, uncontested in the courtroom, that the Hayward Fault bisects the stadium from end to end. 

That’s also why the lawyers were arguing definitions of simple and seemingly commonsensical words like “building,” “structure,” “alteration” and “addition.” 

Charles Olson, the real estate attorney representing the university, argued that the $125 million gym is a separate building, while Lozeau, Volker and Steiner were equally adamant in arguing that it’s not. 

Olson wants to use a specific definition from the state building code, while the opposing attorneys favor drawing from dictionaries and common use. And Miller pointed out that court rulings have favored commonsense definitions. 

Both sides displayed design drawings of the gym, and arguments centered in part on whether physical connections between the two buildings—or are they “structures,” the term used most often in Alquist-Priolo?—resulted in one single edifice or two buildings related only by legal mandates to ensure that one new building didn’t endanger another. 

Olson said the connections were simple, legally required methods of shoring up the gym during excavations for the gym to make sure the digging didn’t jeopardize the older building. 

He cited the case of one client’s building in San Francisco that was required to protect seven adjacent properties. To hold that the gym and the stadium were a single building, he said, would effectively declare that “nearly every building in San Francisco would be one big building.” 

The building/structure dichotomy also could play a role in determining whether the roof of the gym and its connection to the stadium effectively joins the structures. Olson described it as a plaza, which is the role it will play for spectators coming to events at the stadium, rather than as a roof, the function it will serve for athletes and office workers in the building below. 

Another question hinged on whether or not the regents were derelict in their duties in approving an environmental impact report that paved the way for the gym and the other projects in the area without clear evidence that a hidden fault didn’t lie under the gym. 

The state and federal geological surveys sent letters the afternoon before the regents voted last December warning that the evidence submitted by the university’s consultants left doubts about whether faults might be hidden between the northern and southern ends of the site. 

Later tests, performed after the vote, led the agencies to withdraw their concerns. But the doubts were there at the time of the vote, and that was enough, said the legal trio, to invalidate the decision. 

Not so, contended Olson, arguing that the preponderance of evidence was on the no-fault side, and thus sufficient for the regents to make their decision. 

Another crucial question for the judge to decide is just how much the stadium is worth, whether the gym is an appendage or a mere neighbor. 

Alquist-Priolo limits repairs and renovations to existing buildings perched atop faults to 50 percent of their value. The question for Miller is just what does “value” mean? 

Is it the price the existing building would fetch on the open marker, as Lozeau, Steiner and Volker maintain, or is it the cost of building an entirely new replacement structure? If it’s the former, the university could run into a legal barrier to the stadium renovations that are part of the next two phases of work as described in the EIR the regents approved last December. 

And if the university was left with a seismically unsafe gym, would it still build the gym nearby? 

Olson contends that the definition of value is up to the regents and UC Berkeley Vice Chancellor Ed Denton to decide. The vice chancellor was sitting in the courtroom, chewing on the edge of his glasses during much of the hearing. 

Also sitting in the courtroom were the three most heralded participants in the ongoing tree-sit at the oak grove that has drawn national media attention to the university’s plans: Berkeley City Councilmember Betty Olds, former Mayor Shirley Dean and veteran environmentalist Sylvia McLaughlin.  

The courtroom was packed during Wednesday’s session, spilling over into the jury box. 

Also on had was Jennifer McDougall, one of two university representatives to the Downtown Area Plan Advisory Committee which is hammering out proposals to handle the university’s substantial real estate projects planned for the city center. 

Also present were Planning Commission Susan Wengraf, Deputy City Attorney Zach Cowan, and a several representatives of the tree sitters.  

The board of the university’s alumni association, pointing out that UC Berkeley graduates account for 20 percent of Berkeley’s registered voters, cast their own unanimous ballots Monday urging the city to drop the lawsuit. 

Much of the rest of the courtroom action will focus on the California Environmental Quality Act, which regulates the mitigation of environmental impacts of development. 

The hearing could well continue into next week, the lawyers agreed, and may include a visit to the scene by Judge Miller after all sides have had their say—a move Olson tried to discourage, worrying that “it might turn into a circus.”